Public Copyleft Manifesto for Free Speech

Alexandre Oliva

This is a personal proposal, submitted in response to the public consultation about the copyright reform in Brazil.

Copyright was introduced 300 years ago as an adaptation of privileges granted by sovereigns (royalty) for purposes of censorship, and it has since privileged editorial cartels in detriment of society at large and the professional artistic class. In spite of its frequent use as a barrier against the free dissemination of ideas, it has been consolidated in international treaties of voluntary ratification and, in recent decades, impositions through threats of trade sanctions. I propose an alternative that, without conflicting with the so-imposed demands, fully restores free speech, further benefitting by other means both society at large and the artistic class.

It is frequently argued that granting an exclusive power to copy, distribute, publish and modify works is necessary to enable artists to earn a living from their artistic work. This argument does not survive the observation of the practice, in which artists transfer this power to intermediaries and receive a pitiful fraction of the earnings obtained through it, and logic: before publishing a work, its artists have exclusive access and full control over its only copy, and they can charge however much they like from anyone who wants it, even in public auctions and group shopping. Having received the amount they stipulated for the sale, it's not necessary to grant them the power to impose restrictions afterwards.

It is worth pointing out that acknowledging authorship and proper attribution are a simple matter of respect for truth. However, since they are often attained through copyright-imposed restrictions, it can be difficult to imagine how to address them through other legal means that have to do with truth and defense of reputation and honor, such as moral rights, image rights, and compensation for damages and fraudulent misrepresentation.

A more adequate description of the restrictive privilege called copyright is an incentive to producing and publishing new works, so that, after a (no longer so) short period of (no longer) voluntary deprivation, by society at large, of the natural rights to copy, share and modify, the works become contributions to the public domain, so that everyone can benefit from the restoration of the natural rights. In a democratic society, in which power emanates from the people, by the people and for the people, the incentive must be a balance between the people's interests in retaining their natural rights over pre-existing works and in obtaining, through the temporary sacrifice, new works over which these rights could be enjoyed.

The incentive comes at a cost to society, so, in order for the sacrifice to make sense, it is important that it yields the intended benefit. For almost 3 centuries, a monetary or similar incentive to artists was believed to yield more and better works. Recent scientific studies regarding motivational factors and economic productivity, however, have revealed something surprising: although such incentives can bring about productivity improvements for mechanical activities typical of past eras, they have proven to be detrimental to creative activities! That is, the sacrifice is not only unnecessary, it is actively harmful!

The quantity and quality of works is further reduced as artists are demotivated by restrictions to the dissemination of the messages they wish to send to the public, to adaptation and reuse of preexisting works, and even by successful formulas that artists repeat, all often imposed by intermediaries that explore them economically.

Adding further the cost ultimately imposed on society by intermediaries, collecting societies, their lawyers, their lobbyists, their technical measures of surveillance and restriction, and the growing deviation of function of telecommunication services and the state's repressive power to police a civil matter, the payoff to society is a nearly unbearable cost that buys it, instead of a benefit, a drawback.

Given the logical conclusion that it is necessary to revisit this model harmful to the only legitimate party in the discussion about granting this privilege, difficulties arise, such as the international imposition of copyright through the threat of trade sanctions. The imposition itself dennounces the harm in these measures: were they beneficial, ratification would be voluntary.

Other difficulties may derive from a limited and contradictory interpretation of principles in the universal declaration of human rights and the laws of several democratic countries. While they defend freedoms of speech and of communication and dissemination of ideas, they appear to contradict themselves affirming authors' exclusive rights over their works, as well as moral and material interests resulting from them. I shall show that it is no more than a seeming contradiction, and that there is at least one way to uphold simultaneously the freedoms and the exclusivity, without deviating from the internationally imposed norms.

As discussed before, artists can ensure, regardless of copyright, that nobody else gets to access or profit from their work without their permission, by simply refraining from distributing it. This is enough to satisfy human rights and international requirements for copyright law, but copyright goes far beyond that, empowering authors to prevent free communication and dissemination of ideas as they expressed them, through the copyright power to prohibit distribution, and to prevent free speech based on their expressions, through the copyright powers to prohibit modification and distribution.

The exclusive powers of copyright are one kind of restrictive rule to the publishing of works, by which society indirectly prohibits speech, communication and dissemination of ideas, when those given these powers use it to these ends. Although international norms require these powers to be granted to authors, nothing stops society from establishing other restrictions.

It is this very possibility that could enable society to introduce a fairer system: when authors insist in censoring speech based on theirs or communication and dissemination of ideas as expressed by them, society could deny them permission to distribute their speech, much like Free Software developers often use copyleft licenses to keep derived versions of their works remain Free Software for all users.

As copyleft does for Free Software, this approach would encourage the relinquishment of the restrictive powers, so that nobody is ever prevented from improving and sharing expressions of ideas in their possession. But society can do better than censoring back, determining instead that distribution grants an implied license, cancelling out copyright's censorship powers, something that copyleft, based on current copyright, cannot do.

Since every work is ultimately based on the cultural commons shared by all of society, the public domain, this proposal can be though of as public copyleft, or copyleft on the public domain: society requires, as a condition for distribution of a work derived from the public domain, that it be distributed in a way that is compatible with freedoms of speech, and of communication and dissemination of ideas.

Under public copyleft, any work published by its author, or with her permission, becomes free speech, i.e., speech that is free to be disseminated and reused. Artists who prefer their works not to become free speech can retain their exclusivity, keeping them under their strict control, bearing all the fruit from it, or the absence thereof.

I hereby propose, thus, the addition of the following terms to copyright or authors' rights laws:

Considering that the copyright holder of a work has the exclusive right to distribute (including publishing and transmitting) their works, as well as copying and modifying them and granting licenses for all these activities;

Considering that a work whose modification and distribution is restricted harms freedoms of speech and communication, respectively;

Considering that works are often distributed subject to legal and technical restrictions, or in forms other than the “original” forms used to prepare them, which would be most suitable to improve them;

  • The distribution of a work by or with permission of the copyright holder implicitly grants to the general public, perpetually and irrevocably, the required permissions to enjoy these freedoms.

  • Any distributor of a work is forbidden from denying others the means and permissions needed to enjoy these freedoms.

  • Distributors of a work are required to convey, along with the work or when requested by those who received it, information and alternate “original” forms of the work, as needed for the freedoms to be enjoyable in practice.

Copyright 2011 Alexandre Oliva

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